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2012 DIGILAW 2231 (RAJ)

Sheo Prakash v. State of Rajasthan

2012-11-27

GOVIND MATHUR, NARENDRA KUMAR JAIN II

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JUDGMENT 1. The accused-appellant Sheo Prakash S/o Sheo Karan came to be convicted for offence punishable under Sections 148, 449, 341, 364, 342, 302/149, 323 and 324 Indian Penal Code, by the judgment dated 3,7.2003 passed by the learned Additional Sessions fudge (Fast Track), Sri Ganganagar in Sessions Case No. 67/2002. Being aggrieved by the same, he preferred an appeal, being D.B. Criminal Appeal No. 932/2003 (Sheo Prakash and Anr. v. State of Rajasthan) 2. By the order dated 6.2.2004 the sentence of accused-appellant Sheo Prakash was suspended as a temporary measure and he was required to surrender before the Superintendent, Central Jail, Sri Ganganagar on 16.3.2004. The accused-appellant Sheo Prakash failed to surrender on the day fixed, therefore, under an order dated 12.4.2004 the trial Court issued warrant of arrest. The appeal, then came up for haring before this Court on 26.8.2008. Looking to the fact that the appellant was absconding, the appeal was dismissed by adhering to the law laid down by Hon'ble Supreme Court in the case of R.N. Yadav v. State of Bihar, reported in AIR 1987 SC 1500 and a Division Bench judgment of this Court in Jakhir @ Raju v. State of Rajasthan (D.B. Criminal Appeal No. 186/1991, decided on 21.9.1995). 3. This application is preferred to re-call the aforesaid order and to hear the appeal on merits in view of the fact that the accused Sheo Prakash has already been arrested on 27.6.2009. 4. It is submitted by learned counsel that in view of judgment of Hon'ble Supreme Court in the case of Bani Singh and Ors. v. State of U.P., reported in (1996) 4 SCC 720 , the law laid down in the case of Ram Naresli Yadav (supra) is not a valid law. It is asserted that as per the ratio of Bani Singh's case (supra), appeal against conviction cannot be dismissed for want of prosecution or on the count that the accused-appellant is absconding. 5. Heard learned counsel for the applicant and the learned Public Prosecutor. 6. In the case of Bani Singh (supra), the Hon'ble Supreme Court quite specifically observed that in Ram Naresh Yadav's case, the provisions of Sections 385-386 of the Code of Criminal Procedure were not applied correctly and, as such, the appropriate course available to the Court in the absence of lawyer or in the event the accused is absconding it to adjourn the matter. The relevant portion of the judgment reads as under; "14. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo's case appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it dear that if the Appellate Court does not consider the appeal fit for summary dismissal, it 'must' call for the record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary', the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav's case that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution. 15. Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the Public Prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadavs case did not apply the provisions of Sections 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent." 7. In view of the law laid down by the Hon'ble Supreme Court in the case of Bani Singh's case, we are of the considered opinion that the order dated 26.8.2008 dismissing D.B. Criminal Appeal No. 932/2003 deserves to be re-called and the appeal is required to be restored at its original number. 8. Accordingly, this application is allowed. The order dated 26.8.2008 passed in D.B. Criminal Appeal No. 932/2003 (Sheo Prakash and Anr. v. State of Rajasthan) is recalled and the appeal is restored to its original number. 9. Let the appeal be listed for hearing along with other connected matters.Application allowed. *******